Sprague v. Spokane Valley Fire Dep'tSprague v. Spokane Valley Fire Dep't
We reverse. Sprague has met his initial burden to show that SVFD‘s restrictions on his speech violated the First Amendment. On remand, the burden will shift to SVFD to show by a preponderance of the evidence that it would have reached the same decision as to respondent‘s employment termination even in the absence of the protected conduct. Nor does collateral estoppel bar this lawsuit. Accordingly, we remand the case to the superior court for further proceedings consistent with this opinion.
FACTS AND PROCEDURAL HISTORY
I. Factual History
Sprague served as a firefighter, and eventually as a captain, for SVFD. During his employment, Sprague and other SVFD employees formed the Spokane County Christian Firefighter Fellowship (Fellowship). Sprague created a list of work e-mail addresses for 46 firefighters1 that he believed were interested in the Fellowship‘s activities. Sprague began using SVFD‘s e-mail system to send e-mails about the Fellowship‘s activities.
SVFD had a
In addition to its e-mail system, SVFD maintained an electronic bulletin board as a convenient method to contact all 180 SVFD employees across various firehouses. The record does not contain an official policy governing this bulletin board, but evidence indicated that it was used for a variety of personal business, including selling snow tires, requesting tickets to a concert, or seeking recommendations for a babysitter.
SVFD also provided an employee assistance program (EAP) for the benefit of its employees, administered by SVFD‘s health insurer. The insurer prepared newsletters for SVFD employees that touched on various mental health issues and topics like parenting. These newsletters were sent to SVFD employees through SVFD‘s e-mail system. Newsletters discussed suicide, “caregiver depression” and how to “change your mood,” eating disorders, compulsive gambling, binge drinking, and team building.
Sprague contends that the topics discussed in the EAP newsletters were open for discussion via SVFD‘s e-mail system. SVFD disagrees, claiming that it does not “invite comment or discussion from SVFD employees” on the EAP newsletters. However, SVFD acknowledges that an employee could “respond to a particular EAP e-mail and inform SVFD employees of other resources available on the topics discussed within the
Sprague posted information about the Fellowship‘s meetings and newsletters on SVFD‘s electronic bulletin board. For example, one bulletin board post discussed the topic of suicide and contained two scriptural quotes.
Sprague sent e-mails through SVFD‘s system about the Fellowship to his self-compiled e-mail list of other firefighters. One e-mail asked recipients to vote on a logo for the Fellowship. Some logos contained the image of a cross and the phrase “soli Deo gloria,” which translates to “glory to God alone.” Two additional logos contained the image of a flame.
Other e-mails that Sprague sent over SVFD‘s e-mail system contained a link to the Fellowship‘s newsletter, as well as brief messages. The record contains five such messages that Sprague sent over SVFD‘s e-mail system in 2012. In April, he sent a message discussing suicide, the Fellowship‘s logo, supplements, and social activities. In May, Sprague sent out an e-mail with a quote about Christ, which also discussed leadership, suicide, and social activities. In July, Sprague sent an e-mail titled “More discussion about leadership and suicide prevention.” In August, Sprague sent an e-mail discussing how teachings from the Bible could help individuals and families deal with difficult situations. Finally, in September, Sprague sent an e-mail about how biblical teachings can help alleviate stress and an update on a previous activity.
These e-mails and postings generated controversy among Sprague‘s supervisors. They took progressive discipline against Sprague in an effort to halt his communications about the Fellowship on SVFD‘s e-mail and bulletin board systems. A member of the Spokane Valley Board of Fire Commissioners sent a letter to Sprague, requesting that he stop using SVFD‘s e-mail system and use his personal e-mail address instead:
If you wish to send personal emails while on duty (if otherwise permitted under SVFD policy), you may do so using a personal e-mail account (such as Hotmail, Gmail, Yahoo or Comcast account). Using a personal email account, you may only send messages to other personal email accounts. You may not use a personal email account to send messages or solicitations [to] official SVFD accounts.
Sprague did not use his personal e-mail and continued to send e-mails over SVFD‘s e-mail system. In turn, his supervisors continued their efforts to halt his communications.
SVFD‘s letters focused on the religious content of Sprague‘s postings:
The inappropriate and prohibited behavior involved written content that was of a religious nature, including religious symbols. . . . The inappropriate and prohibited behavior involved the use of language and written content that was of a religious nature, specifically the quotation of scripture.
Valerie Biladeau, SVFD‘s representative in the lawsuit, testified that the problem with Sprague‘s e-mails was that they were not “content neutral.” She stated that although the “subject language” of Sprague‘s e-mails was the same as the EAP newsletters, they offered tips “from his interpretation of what [Sprague] had read in the Bible.” This was an issue because SVFD “want[ed] to keep everything content neutral to separate church from state because [it is] a state organization.” She told Sprague that the “content of the who, where, what, why and when is okay, but [to] please remove the scripture.”
Despite his supervisors’ continued warnings, Sprague continued to post on the bulletin board and send e-mails about the Fellowship over SVFD‘s e-mail system. Eventually, Sprague was terminated from SVFD on the recommendation of the fire chief and SVFD‘s Board of Fire Commissioners. His discharge was a direct result of the e-mails and bulletin board postings, as well as his failure to obey his superiors’ orders to cease the communications.
Sprague appealed his termination to the Spokane County Civil Service Commission. Sprague argued that SVFD violated his right to exercise his religion and his right to free speech. The Commission held a hearing in which Sprague and SVFD were represented by counsel, made opening statements, called witnesses, cross-examined them, and presented documentary evidence. Both parties filed posthearing briefs.
The Commission found that SVFD‘s policies were equally applied to all employees and prohibited the expression of all religious views. The Commission ruled in favor of SVFD and upheld Sprague‘s termination. Sprague did not appeal the Commission‘s adverse decision, which became final.
Sprague then filed this action in Spokane County Superior Court. He sued under
SVFD moved for summary judgment, arguing that the decision of the Commission collaterally estopped Sprague from bringing these claims. Sprague filed a countermotion for partial summary judgment, seeking a declaration that SVFD‘s policy was unconstitutional. The superior court agreed with the Commission‘s reasoning that SVFD‘s policy was not discriminatory because it applied equally to all employees in prohibiting expression of religious views:
The fire department made a decision that rather than try to parse this out, or just have an open system which allowed for complete discussions of religious issues in connection with fire department issues, they chose not to have any of that type of religious discussion. They were not favoring one position or another. This was truly an “I do not want to go there” type of policy.
Accordingly, the superior court denied Sprague‘s motion and granted SVFD‘s motion, finding that Sprague‘s claims were collaterally estopped by the Commission‘s hearing. The court also discussed the First Amendment free speech issues at length, concluding that SVFD‘s policies were “viewpoint neutral.” Sprague appealed both the superior court‘s decision to grant SVFD‘s motion for summary judgment based on collateral estoppel and the trial court‘s decision to deny his motion for partial summary judgment that SVFD‘s policy was unconstitutional.
Division Three of the Court of Appeals heard Sprague‘s appeal. In a three-way split decision, the Court of Appeals upheld the superior court‘s grant of summary judgment to SVFD. Sprague v. Spokane Valley Fire Dep‘t, 196 Wn. App. 21, 381 P.3d 1259 (2016). The majority concluded that Sprague‘s claims were collaterally estopped by two factual findings made by the Commission: (1) “‘Sprague was not terminated for religious reasons‘” and (2) “‘there was no evidence presented . . . that the rules were applied unevenly and with discrimination based upon Sprague‘s expression of his Christian views.‘” Id. at 31 (alteration in original). The majority did not reach Sprague‘s as-applied constitutional challenge to SVFD‘s policy. Id. at 30.
The dissent argued that collateral estoppel did not apply and that, as applied, SVFD‘s e-mail policy, Policy 171, was likely unconstitutional. Id. at 50, 63-64. The dissent would have reversed summary judgment and remanded for a determination of which of Sprague‘s e-mails overlapped with the EAP newsletter topics and whether or not SVFD could have fired Sprague based on his communications that
Sprague petitioned this court for review of the trial court‘s grant of summary judgment to SVFD on the issue of collateral estoppel and for review of the trial court‘s denial of summary judgment to Sprague on the issue of whether SVFD‘s policy was unconstitutional. We granted review on both issues without limitation.
STANDARD OF REVIEW
We review a trial court‘s summary judgment decisions de novo. Scrivener v. Clark Coll., 181 Wn.2d 439, 444, 334 P.3d 541 (2014). “Summary judgment is appropriate only when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.” Id.; CR 56(c). In such circumstances, this court may grant summary judgment. See, e.g., In re Estate of Toland, 180 Wn.2d 836, 854, 329 P.3d 878 (2014) (reversing a trial court‘s grant of summary judgment and granting the opposing party‘s motion for summary judgment); LaMon v. Butler, 112 Wn.2d 193, 199 n.5, 770 P.2d 1027 (1989) (“Washington courts have held many times that summary judgment should be granted when reasonable persons, giving all reasonable inferences to the nonmoving party, could only conclude that the moving party is entitled to judgment. In such cases, there is no genuine issue of material fact.” (emphasis added)).4 “Constitutional challenges are questions of law and are also reviewed de novo.” City of Redmond v. Moore, 151 Wn.2d 664, 668, 91 P.3d 875 (2004). Finally, we review de novo whether collateral estoppel applies. Christensen v. Grant County Hosp. Dist. No. 1, 152 Wn.2d 299, 305, 96 P.3d 957 (2004).
ANALYSIS
As explained below, we reverse the grant of summary judgment to SVFD on the basis of collateral estoppel and conclude that SVFD engaged in viewpoint discrimination. “Although the rejection of one party‘s cross motion for summary judgment does not compel a court to grant the opposing party‘s cross motion for summary judgment, we hold that to be the appropriate remedy in this case.” Weden v. San Juan County, 135 Wn.2d 678, 710, 958 P.2d 273 (1998).
Here, neither party argues before this court that the First Amendment issue should be remanded to the trial court. Instead, all parties argue that they are entitled to judgment on the constitutional issue as a matter of law. Accordingly, the parties recognized in several places that the material facts of the case are undisputed. See, e.g., Clerk‘s Papers (CP) at 425 (“It is undisputed that Mr. Sprague used SVFD computers and email, public resources, to send and disseminate his personal emails.“), 473 (“SVFD does not dispute Sprague‘s description of its policy.“).
In addition, both the Commission and the trial court also recognized that the material facts of the case were undisputed. In its findings and decision, the Commission stated, “The facts relating to this matter are, for the most part, undisputed.” Id. at 52. In the hearing on the parties’ motions for summary judgment, the trial judge stated, “As I indicated in my questioning, it appeared to me in looking at this case that, irrespective of what the parties might think, there is a lot more agreement than there is disagreement.” Report of Proceedings (RP) at 45.
Both parties have had multiple opportunities to present evidence on the issues. At the trial court, SVFD and Sprague presented over 100 pages of motions, memoranda, declarations, depositions, and other evidence in response to whether SVFD‘s application of Policy 171 was unconstitutional. See, e.g., CP at 328-406, 421-58, 467-87. The trial court heard oral arguments from both parties about the constitutional issue and made several findings, including that Policy 171 was viewpoint neutral. RP at 28-38 (discussing Sprague‘s motion for partial summary judgment that SVFD‘s policy was unconstitutional), 38-41 (responding to Sprague‘s arguments that SVFD‘s policy was unconstitutional),
We acknowledge that some of our colleagues would prefer that we direct the trial court on remand to reevaluate all the evidence regarding Sprague‘s motion for partial summary judgment that SVFD violated the First Amendment. But a remand to review all the evidence yet again would be redundant and unnecessary. The parties have already presented the evidence to both the Commission and the trial court. RP at 50-51 (trial court‘s “view is the . . . Commission . . . can make factual findings . . . which may support or not support a constitutional finding. It is just the constitutional finding itself they cannot make. But they made all the necessary findings to support one and the issue was argued to them.” (emphasis added)). Sprague‘s employment was terminated five years ago, and this case was filed almost four years ago. Sprague has gone through a civil service commission hearing and decision, a superior court hearing and decision, a Court of Appeals hearing and decision, and a hearing in this court, and now awaits a decision on his complaint. We are unwilling to prolong these proceedings unnecessarily. Both parties have had ample opportunity to present evidence on whether there are genuine issues of material fact regarding the constitutional issue presented here.
Based on the evidence that the parties have presented, we conclude that there are no genuine issues of material fact regarding whether SVFD engaged in viewpoint discrimination when it applied Policy 171 to Sprague‘s speech. As a result, we hold that Sprague has met his initial burden to show that SVFD‘s restrictions on his speech violated the First Amendment. Accordingly, the scope of remand is limited to issues left open by this decision, that is, whether the termination of Sprague‘s employment was justified and if not, what damages Sprague suffered. We remand these issues to the trial court.
I. Sprague‘s First Amendment Rights
The heart of this case is whether SVFD attempted in a viewpoint neutral manner to restrict Sprague‘s speech. Contrary to the concurrence-dissent‘s characterization, both parties understood the appeal to encompass consideration of this issue.5 Compare Suppl. Br. of Sprague at 14 (“[T]he trial court erred in failing to grant Sprague‘s motion for partial summary judgment asking the policy to be declared unconstitutional.“), with Suppl. Br. of Resp‘ts at 7-8 (arguing that if collateral estoppel does not apply, “SVFD‘s policy is constitutional“). Thus, in addition to the question of collateral estoppel, the other question presented is whether SVFD‘s restrictions on Sprague‘s speech were constitutional.6
However, three factors limit our analysis of whether SVFD‘s policy violated Sprague‘s free speech rights. First, although Sprague raised both constitutional and statutory claims, he briefed only his constitutional claims on appeal. We will not consider arguments that a party fails to brief. Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 808-09, 828 P.2d 549 (1992). Thus, we do not examine Sprague‘s statutory claims.
Second, Sprague also failed to adequately brief his claims under the Washington Constitution. He does not cite any law establishing that he has greater protections under the Washington Constitution than under the First Amendment. See Suppl. Br. of Sprague at 16. We will not examine whether the Washington Constitution provides greater protection than the United States Constitution unless a party adequately briefs the
Third, although Sprague expressed his religious beliefs, on appeal he relies only on the free speech clause of the First Amendment, not on the exercise of religion clause. See Suppl. Br. Sprague at 13. As a result, we address only whether SVFD‘s policy violated Sprague‘s free speech rights.11
Public Employees Retain Their Free Speech Rights under the First Amendment
It is well settled that public employees do not surrender their First Amendment rights to speak freely on matters of public concern merely because they are employed by a public entity. Garcetti v. Ceballos, 547 U.S. 410, 417, 126 S. Ct. 1951, 164 L. Ed. 2d 689 (2006). The “State may not discharge or otherwise discipline an employee on a basis that infringes upon that employee‘s constitutionally protected interest in freedom of speech.” White v. State, 131 Wn.2d 1, 10, 929 P.2d 396 (1997).
An employee‘s right to speak, however, is not absolute. Id. The State, as an employer, also has a legitimate interest “‘in promoting the efficiency of the public services it performs through its employees.‘” Garcetti, 547 U.S. at 417 (quoting Pickering v. Bd. of Educ., 391 U.S. 563, 568, 88 S. Ct. 1731, 20 L. Ed. 2d 811 (1968)). The court must perform a balancing test to determine whether the interest of the public employee in speaking on a matter of
A public employee‘s speech will be protected under the First Amendment if it meets two criteria: (1) the employee was speaking as a citizen on a matter of public concern and (2) the employee‘s interest in speaking outweighs the employer‘s interest in restricting the employee‘s speech. White, 131 Wn.2d at 11; see also Garcetti, 547 U.S. at 418 (requiring a determination of whether an “employee spoke as a citizen on a matter of public concern“).
First, the court must decide the threshold issue of whether the employee spoke as a citizen on a matter of public concern. White, 131 Wn.2d at 11. This is a question of law.12 Id.
Second, if the employee spoke as a citizen on a matter of public concern, the court then applies the Pickering13 balancing test to determine whether the employee‘s interest in speaking outweighed the employer‘s interest in promoting the efficiency of its operations. White, 131 Wn.2d at 11. There are several relevant factors that a court may consider in this analysis:
(1) the time, place and manner of the employee‘s speech; (2) whether the statement would create problems in maintaining discipline by immediate supervisors or harmony among co-workers; (3) whether the employment relationship is one in which personal loyalty and confidence are necessary; and (4) whether the speech impeded the employee‘s ability to perform daily responsibilities.
Id. at 15 (citation omitted). An employer need not show actual disruption, and the court may defer to an employer‘s predictions of harm. Id.
“Generally, when a free speech challenge arises in regard to activity on property owned and controlled by the government, a court will engage in a ‘forum analysis’ to determine the level of judicial scrutiny that applies [to the restriction].” Bradburn v. N. Cent. Reg‘l Library Dist., 168 Wn.2d 789, 813, 231 P.3d 166 (2010). Traditionally, there are three different kinds of forums in which a government may restrict speech: public forums, limited public forums, and nonpublic forums.14 Sanders v. City of Seattle, 160 Wn.2d 198, 209-11, 156 P.3d 874 (2007). Here, the parties agree that SVFD‘s e-mail system and electronic bulletin board are nonpublic forums.
We follow the United States Supreme Court‘s ruling in Connick v. Myers, which states that the question is one of law. 461 U.S. 138, 148 n.7, 103 S. Ct. 1684, 75 L. Ed. 2d 708 (1983) (“The inquiry into the protected status of speech is one of law, not fact.“); see also White, 131 Wn.2d at 11 (“[T]he first inquiry before the court is whether the speech involved is protected by the First Amendment. This is a question of law.“).
In nonpublic forums, the employer‘s interest in regulating speech is highest and receives the least scrutiny. City of Seattle v. Mighty Movers, Inc., 152 Wn.2d 343, 361, 96 P.3d 979 (2004). An employer may restrict employees’ speech as long as the restrictions are reasonable and viewpoint neutral. Id. (quoting Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 806, 105 S. Ct. 3439, 87 L. Ed. 2d 567 (1985)). A reasonable restriction “need not be the most reasonable or the only reasonable limitation.” Cornelius, 473 U.S. at 808. Instead, the employer may create any reasonable restriction to ensure that the forum will be reserved for its intended purpose. Mighty Movers, 152 Wn.2d at 361.
However, a reasonable restriction cannot be justified when it “is in fact based on the desire to suppress a particular
With these considerations in mind, we proceed to apply this test to Sprague‘s case.
1. Sprague Spoke as a Citizen
In Garcetti, the Supreme Court held that a public employee‘s speech merits First Amendment protection only when that employee speaks as a citizen. 547 U.S. at 423-24. Thus, an employee‘s speech is not protected when that employee speaks pursuant to his or her official duties. Id. at 421. Recently, the Court refined this analysis, holding that “[t]he critical question under Garcetti is whether the speech at issue is itself ordinarily within the scope of an employee‘s duties, not whether it merely concerns those duties.” Lane v. Franks, 573 U.S. 228, 134 S. Ct. 2369, 2379, 189 L. Ed. 2d 312 (2014). When determining whether an employee‘s speech was within the scope of the employee‘s duties, courts have considered several factors: “the speech‘s impetus; its setting; its audience; and its general subject matter,” Mayhew, 856 F.3d at 464, as well as whether the employee confined his communications “within his chain of command,” id. at 466, and whether the employee spoke in “direct contravention to his supervisor‘s orders,” Dahlia v. Rodriguez, 735 F.3d 1060, 1074-75 (9th Cir. 2013). The Lane Court also clarified that “the mere fact that a citizen‘s speech concerns information acquired by virtue of his public employment does not transform that speech into employee—rather than citizen—speech.” 134 S. Ct. at 2379. Consequently, the Garcetti exception to First Amendment protection “must be read narrowly to encompass speech that an employee made in accordance with or in furtherance of the ordinary responsibilities of her employment, not merely speech that concerns the ordinary responsibilities of her employment.” Alves v. Bd. of Regents of Univ. Sys. of Ga., 804 F.3d 1149, 1162 (11th Cir. 2015).
Here, it is clear from the record that Sprague‘s ordinary duties as an SVFD captain did not include sending e-mails about the Fellowship. Sprague testified that his objective in speaking was fellowship between “people of like-minded faith, just to be an encouragement to everybody.” In pursuit of this objective, Sprague discussed the Fellowship and the mental health and well-being of firefighters, including issues of suicide and stress relief. He directly e-mailed 46 firefighters and posted on the electronic bulletin board, which was accessible to 180 SVFD employees. Sprague did not confine his communications to the chain of command; instead he spoke in direct contravention of his supervisors’ orders. Sprague‘s supervisors characterized the e-mails as falling outside the scope of “official SVFD business.” CP at 393 (“You may not use department email to post, discuss, or in any way disseminate communications that are sent of any purpose other than official SVFD business. This means you cannot send messages using you[r] official SVFD email which discuss the Fellowship or any other private purpose.“). With this evidence in mind, we conclude that Sprague spoke as a citizen; his e-mails were not sent in the course of his ordinary duties as an SVFD captain.
2. Sprague Spoke on a Matter of Public Concern
Even when a public employee speaks as a citizen, the First Amendment protects only speech that touches on a matter of public concern. Connick v. Myers, 461 U.S. 138, 145-49 (1983). Whether speech is a matter of public concern is a question of law. White, 131 Wn.2d at 11. Topics of public concern include current matters of political or social concern to the community,15
Only some of Sprague‘s communications touch on matters of public concern. The e-mails he sent that discuss the mental health and well-being of firefighters, such as issues of suicide and stress relief, relate to public safety and are matters of public concern. Sprague‘s former boss had recently committed suicide, and SVFD paid for Sprague to take suicide prevention courses. Given this context, it is fair to conclude that the mental health of SVFD firefighters, responsible for protecting the public safety of Spokane County, was likely a matter of particular and current concern to the community at the time of Sprague‘s e-mails. Other courts have held that similar issues relating to the mental health of firefighters constitute matters of public concern:
[L]ow morale, even personal discontent among the employees of a fire department can affect the ability of the organization to fulfill its duties in protecting the public safety. And the ability of a fire department to fight fires effectively[ ] is obviously a matter of public concern.
Fire Fighters Ass‘n, 742 F. Supp. at 1190.
Sprague‘s e-mails discussing leadership also constitute matters of public concern. Courts have held that speech dealing with the functioning of government, including the efficiency of management and operations of agencies, are matters of public concern. See, e.g., Clairmont v. Sound Mental Health, 632 F.3d 1091, 1103 (9th Cir. 2011); Johnson v. Multnomah County, 48 F.3d 420, 425 (9th Cir. 1995). This includes criticism of public officials or their policies. See Strinni v. Mehlville Fire Prot. Dist., 681 F. Supp. 2d 1052, 1072 (E.D. Mo. 2010). The
However, some of Sprague‘s communications clearly fall outside the scope of public concern. The communications that he sent discussing the Fellowship‘s social activities and logo design are not matters of public concern. They in no way relate to public safety, the efficiency of government operations, or any other topic of public concern. Consequently, any of Sprague‘s communications that touched on these topics do not merit protection under the First Amendment, and SVFD was justified in restricting Sprague‘s speech in those contexts.
3. Sprague‘s Interest in Speaking Outweighed SVFD‘s Interests
Having concluded that Sprague‘s communications discussing the mental health of firefighters and leadership are matters of public concern, we now turn to the Pickering balancing test.
Under the Pickering balancing test, the court must “balance the interests of the employee against the interests of the employer and . . . determine, as a matter of law, which of those interests is greater.” White, 131 Wn.2d at 14. The government has a legitimate interest in the “effective and efficient fulfillment of its responsibilities to the public.” Connick, 461 U.S. at 150. And, in nonpublic forums, such as those at issue here, the government‘s interest in restricting speech is at its highest. Cornelius, 473 U.S. at 799-800. So long as the government‘s restrictions are reasonable and viewpoint neutral, they are constitutional. Good News Club, 533 U.S. at 106-07.
Here, Policy 171, restricting use of the e-mail system to SVFD business, was reasonable. However, SVFD applied Policy 171 to Sprague in a discriminatory manner that was not viewpoint neutral; SVFD permitted the discussion of topics such as suicide, mental health, and team-building over its e-mail system via the EAP newsletters and potential employee discussion, but prohibited Sprague from speaking on these same topics from his religious viewpoint.
a. Policy 171 Was Reasonable
The government may permissibly regulate a nonpublic forum so that it remains useful for the purpose to which it is dedicated. Mighty Movers, 152 Wn.2d at 360-61. The regulations need not be the most reasonable or the only reasonable limitation. Id. at 361. Thus, we must examine whether SVFD‘s restrictions on its e-mail system and electronic bulletin board were reasonable in light of the purposes that they were intended to serve.
Here, SVFD‘s e-mail system was intended for “business use related to SVFD.” SVFD‘s restrictions requiring that its employees use the e-mail system only for official SVFD business are clearly rationally related to this purpose. Indeed, Sprague does not
The record does not contain an official policy specifying the purpose of the SVFD electronic bulletin board. SVFD‘s representative testified that the general purpose was for easily communicating to SVFD‘s 180 employees across multiple fire stations. Policy 171 also contains a clause specifying that communication over SVFD systems may not be “disruptive, offensive, abusive or threatening.” Thus, it appears that the purpose of SVFD‘s electronic bulletin board was for communicating with all SVFD employees in a manner that was not otherwise disruptive or offensive.
Given this purpose, SVFD‘s restrictions on Sprague‘s speech over the SVFD bulletin board are unreasonable. The record reflects that the bulletin board was used for a variety of personal uses, from seeking recommendations for a babysitter to asking whether anyone had any hay for sale. Sprague posted information about Fellowship activities, as well as links to and short descriptions about the Fellowship‘s topics of discussion. He clearly intended to reach SVFD employees with his communications; he spoke on behalf of or about the Fellowship, which was created by and consisted of SVFD employees. SVFD presents no evidence that Sprague‘s communications were otherwise considered “disruptive, offensive, abusive or threatening” beyond the attempts of his supervisors to halt the postings. See Dougherty v. Sch. Dist., 772 F.3d 979, 992 (3d Cir. 2014) (concluding that a court should not “find against an employee where the disruption ‘was primarily the result, not of the plaintiff‘s exercise of speech, but of his superiors’ attempts to suppress it‘” (quoting Czurlanis v. Albanese, 721 F.2d 98, 107 (3d Cir. 1983))); see also Tucker v. Cal. Dep‘t of Educ., 97 F.3d 1204, 1211 (9th Cir. 1996) (concluding that time spent by supervisors “trying to restrict . . . religious speech does not constitute disruption“). Considering the broad purpose of the SVFD electronic bulletin board for a variety of personal uses relating to SVFD employees, we hold that SVFD‘s restrictions preventing Sprague from posting about the Fellowship on the bulletin board were unreasonable.21
b. SVFD Applied Policy 171 in a Manner That Was Not Viewpoint Neutral
Given that SVFD‘s restrictions on the e-mail system were reasonable, we turn to whether they were viewpoint neutral. A reasonable restriction cannot be justified when it “is in fact based on the desire to suppress a particular point of view.” Cornelius, 473 U.S. at 812. When the government targets particular views taken by speakers on a subject, it violates the
“[A]lthough a speaker may be excluded from a nonpublic forum if he wishes to address a topic not encompassed within the purpose of the forum . . . or if he is not a member of the class of speakers for whose especial benefit the forum was created . . ., the government violates the
First Amendment when it denies access to a speaker solely to suppress the point of view he espouses on an otherwise includible subject.”
Lamb‘s Chapel, 508 U.S. at 394 (second and third alterations in original) (quoting Cornelius, 473 U.S. at 806).
The United States Supreme Court has decided three cases that control.22
First, in Lamb‘s Chapel, the Court held that a school district violated viewpoint neutrality when it prohibited a church from showing a film series about family issues and parenting on school property. Id. The school property was a limited public forum open only to certain uses. Id. at 386. Among those permissible uses were “‘social, civic and recreational meetings and entertainments, and other uses pertaining to the welfare of the community,‘” as long as the gatherings were nonexclusive and open to the general public. Id. The school had an additional policy prohibiting use of its property for “‘religious purposes.‘” Id. at 387. Lamb‘s Chapel, an evangelical church in the community, sought permission to show a film series on school property. Id. The film series featured a “licensed psychologist, former associate clinical professor of pediatrics at the University of Southern California, best-selling author, and radio commentator” discussing the negative effects of media. Id. at 388. The psychologist‘s theory was that these effects “could only be counterbalanced by returning to traditional, Christian family values instilled at an early stage.” Id. The district denied the church permission to show the film series solely on the basis that the “presentation would have been from a religious perspective.” Id. at 394. The Court determined that the school district applied its policies in an unconstitutional manner. Id. at 393. Although the film series was permissible as a use benefiting the community and it was open to the general public, the school district refused permission to show it on the basis of its religious viewpoint. Id. at 394. As a result, the district violated the
Second, in Rosenberger, the Court held that the University of Virginia violated the
Third, in Good News Club, the Court held that a school engaged in viewpoint discrimination when it excluded a religious club from using its property to hold meetings after school. Id. at 109. The school permitted groups to hold meetings on its property that were for “‘instruction in any branch of education, learning or the arts‘” and those “‘social, civic and recreational meetings and entertainment events, and other uses [that] pertain[ed] to the welfare
Here, official Policy 171—restricting personal use of SVFD‘s e-mail system—was viewpoint neutral. However, there is evidence that SVFD did not apply Policy 171 to Sprague in a viewpoint neutral manner. SVFD opened its e-mail system for discussion of the topics in the EAP newsletters. SVFD forwarded the e-mails over the system and concedes that employee discussion of those topics would be permissible. See Br. of Resp‘ts at 25 (acknowledging that employees could “respond to a particular EAP email and inform SVFD employees of other resources available on the topics discussed within the EAP newsletters, as well as the time, place, and contact information of the organization or event“). As discussed below, many of Sprague‘s e-mails touched on the same topics as the EAP newsletters forwarded by SVFD. Therefore, SVFD could not allow discussion of those topics from some viewpoints while excluding Sprague‘s viewpoint.
Sprague presented evidence that SVFD permitted other firefighters to use the e-mail system for business not related to official SVFD business. For example, e-mails sent over the system discussed fundraisers, social events, and selling tickets to sports events. Yet, the only time that SVFD sought to enforce Policy 171 was to preclude Sprague from sending e-mails about the Fellowship.
SVFD also permitted discussion of team building, and suicide and other mental health issues over its e-mail system via the EAP Newsletters. It concedes that follow-up employee discussion on these topics would be a permissible use of the e-mail system, stating that an employee could “respond to a particular EAP e-mail and inform SVFD employees of other resources available on the topics discussed . . . , as well as the time, place, and contact information of the organization or event.” Id. Sprague‘s e-mails discussing suicide, leadership, and stress relief offered a religious viewpoint on the same topics that were in the EAP newsletters.
For example, one EAP newsletter featured the image of a woman meditating and discussed strategies to “Change Your Mood” by providing suggestions to reduce negative and stressful thoughts: use deep breathing exercises, exercise regularly, focus on uplifting and inspiring reading and other activities, and remember with gratitude the positive things in life. Other EAP newsletters discussed suicide and team building.
In comparison, Sprague sent e-mails discussing the same topics. For example, Sprague sent an e-mail with suggestions on how to reduce stress and deal with difficult situations: build a life that will withstand stress and reexamine your life‘s foundations. He also sent e-mails that discussed suicide and the relationship of leaders and followers. Some of Sprague‘s e-mails included religious quotes, while others featured secular quotes. Each e-mail provided resources on the relevant topics and/or directed recipients to the Fellowship‘s newsletter.
Once SVFD opened its e-mail system to discuss reducing negative and stressful thoughts and recalling with gratitude the positive things in life, it could not exclude religious viewpoints. See Good News Club, 533 U.S. at 112 (holding that “speech discussing otherwise permissible subjects cannot be excluded from a . . . forum on the ground that the subject is discussed from a religious viewpoint“). “What
SVFD did not apply Policy 171 neutrally, but selectively applied it to preclude Sprague from expressing his religious viewpoint.
c. SVFD‘s Interest in Avoiding an Establishment Clause Violation Did Not Outweigh Sprague‘s Interest in Speaking
SVFD argues that its focus on and subsequent restriction of Sprague‘s religious speech was justified, and even constitutionally mandated, to avoid an establishment clause violation.24 In other words, SVFD argues that as a government employer, its interest in avoiding an establishment clause violation outweighed Sprague‘s interest in speaking. See Lamb‘s Chapel, 508 U.S. at 394 (recognizing that “the interest of the State in avoiding an Establishment Clause violation ‘may be [a] compelling’ one justifying an abridgment of free speech otherwise protected by the First Amendment” (alteration in original)). We reject that defense in this case because permitting Sprague equal access to a government forum does not violate the establishment clause.
When examining a federal establishment clause claim, this court applies the Lemon25 test.26 See Erdman v. Chapel Hill Presbyterian Church, 175 Wn.2d 659, 670-72, 286 P.3d 357 (2012) (plurality opinion). The Lemon test has three criteria for evaluating a challenge under the establishment clause:
“First, the [action] must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the [action] must not foster an excessive government entanglement with religion.”
State ex rel. Gallwey v. Grimm, 146 Wn.2d 445, 471, 48 P.3d 274 (2002) (internal quotation marks omitted) (quoting Lemon, 403 U.S. at 612-13).
Here, SVFD focuses on Justice O‘Connor‘s gloss to the Lemon test, sometimes referred to as the “endorsement analysis.” See Steven G. Gey, Reconciling the Supreme Court‘s Four Establishment Clauses, 8 U. PA. J. CONST. L. 725, 737 (2006). Under the endorsement analysis, the first two prongs of the Lemon test turn on
Disapproval sends the opposite message.” Id. at 688 (O‘Connor, J., concurring). The court assesses whether something may be considered an endorsement through the eyes of a “reasonable observer evaluat[ing] whether a challenged governmental practice conveys a message of endorsement of religion.” County of Allegheny v. Am. Civil Liberties Union, 492 U.S. 573, 630, 109 S. Ct. 3086, 106 L. Ed. 2d 472 (1989) (O‘Connor, J., concurring in part and concurring in judgment).
To evaluate SVFD‘s establishment clause argument, we turn again to Rosenberger and Good News Club, as well Berry v. Department of Social & Health Services, 447 F.3d 642, 651 (9th Cir. 2006). We conclude that SVFD‘s establishment clause concerns are chimerical.
In Rosenberger, the Court rejected the University of Virginia‘s contention that granting funding to a religious student journal would violate the establishment clause. Id. at 845-46. The Court held that “[i]t does not violate the Establishment Clause for a public university to grant access to its facilities on a religion-neutral basis to a wide spectrum of student groups.” Id. at 842. So long as the university based its policy on a “religion-neutral basis,” it was not necessary for the university to deny access to religious groups in order to comply with the establishment clause. Id. at 843, 845.
Similarly in Good News Club, the Court rejected a school‘s establishment clause defense. Id. at 119. Because granting the religious club access to school property “would ensure neutrality, not threaten it,” the court held that the school‘s argument that it might be perceived as endorsing religion was not supported. Id. at 114, 117. In fact, the “danger that children would misperceive the endorsement of religion [was not] any greater than the danger that they would perceive a hostility toward the religious viewpoint if the Club were excluded. . . .” Id. at 118. Thus, the countervailing free speech rights of the club outweighed the school‘s claimed establishment clause defense. Id. at 119.
On very different facts, the Ninth Circuit has held that a state agency‘s interest in avoiding an establishment clause violation outweighed an employee‘s interest in religious expression in Berry, 447 F.3d at 651. Berry worked for a state agency where his official duties involved assisting clients’ transition out of welfare programs. Id. at 646. As part of his duties, he interviewed clients in his cubicle, where he displayed a Bible and religious messages. Id. at 647. His employer told Berry to remove any religious materials out of the view of clients; it did not otherwise prohibit Berry from discussing religion with his coworkers. Id. at 646-47. Berry sued his employer, claiming, among other things, a violation of his right to free speech under the
The Ninth Circuit held that the state agency‘s interest in avoiding an establishment clause violation outweighed Berry‘s free speech rights. Id. at 651. The fact that Berry represented the state agency in his client interviews was dispositive. The court concluded that because Berry acted as an agent of the State, clients “may be motivated to seek ways of ingratiating themselves with . . . Berry, or conversely, they may seek reasons to explain a perceived failure to assist them.” Id. Thus, Berry‘s display of religious items viewable by clients “[ran] a real danger of entangling the Department with religion.” Id. Consequently, under the Pickering balancing test, the state agency‘s interest in avoiding the appearance of endorsing a religious message outweighed Berry‘s interest in displaying religious items in his cubicle, which was “frequented by the Department‘s clients.” Id. at 652.
Here, unlike Berry, Sprague was not discussing or attempting to discuss religion
d. SVFD‘s Other Interests Do Not Outweigh Sprague‘s Interest in Speaking.
SVFD and amicus, Washington Employment Lawyers Association (WELA), also argue that SVFD‘s other interests as an employer outweighed Sprague‘s interest in speaking. Specifically, they argue that Sprague‘s e-mails were coercive to other employees, that SVFD needed to restrict religious speech in order to prevent discrimination, and that SVFD interests in a loyal employment relationship necessitated and justified the restrictions on Sprague‘s speech. We disagree for the following reasons.
SVFD relies on Sprague‘s position as a captain to argue that Sprague‘s e-mails were coercive to his subordinates. However, Sprague did not send e-mails as part of his official duties as captain, but as a member of the Fellowship, an organization formed by SVFD employees, and as part of a follow-up discussion to topics introduced by SVFD through the EAP newsletters. It does not appear that Sprague triggered SVFD‘s rules for the line of command when he sent out e-mails in this context.
Nor does the record support SVFD‘s contention that SVFD employees could not respond or react to Sprague‘s messages. Sprague solicited feedback from his coworkers, including information from those who did not wish to receive the e-mails. In fact, one employee requested to be removed from the list, and Sprague removed him. The facts simply do not support SVFD‘s contention that Sprague‘s position as captain coerced other employees to participate in religious activities. Cf. Venters v. City of Delphi, 123 F.3d 956, 970 (7th Cir. 1997) (holding that a police chief coerced a radio dispatcher in violation of the establishment clause by pressuring her to conform her conduct with his religious beliefs and indicating that she would lose her job if she failed to do so).
WELA also argues that because of Sprague‘s position as captain, SVFD was required to restrict his speech to comply with its duties under relevant nondiscrimination laws. However, WELA focuses on the act of supervisors proselytizing to subordinates. Sprague does not challenge the right of SVFD to adopt a policy restricting the rights of supervisors to proselytize to their subordinates. Neither is such a policy at issue here. Instead, we are concerned with SVFD‘s policy proscribing discussion from a religious viewpoint on otherwise permissible topics. Such a policy violates, rather than upholds, relevant nondiscrimination laws. See, e.g.,
WELA also questions Sprague‘s right to send his messages because “[f]irefighters often face life or death situations and
Although SVFD presented no evidence that Sprague created any disciplinary issue, it is reasonable to characterize Sprague‘s employment relationship with SVFD as one in which loyalty and confidence are necessary—firefighters depend on one another in life-threatening situations. See Anzaldua v. Ne. Ambulance & Fire Prot. Dist., 793 F.3d 822, 834 (8th Cir. 2015) (“‘When lives may be at stake in a fire, an espirit de corps is essential to the success of the joint endeavor.‘” (internal quotation marks omitted) (quoting Shands v. City of Kennett, 993 F.2d 1337, 1344-45 (8th Cir. 1993))). An appeal for esprit de corps does not justify an unconstitutional restriction of speech. See White, 131 Wn.2d at 10. Because Sprague was speaking on a matter of public concern even when he posted messages that his SVFD supervisors perceived as critical, and given the evidence that Sprague‘s speech was not disruptive or otherwise harmful, we conclude that Sprague‘s interest in speaking outweighed SVFD‘s interest in a loyal employment relationship here. Cf. Anzaldua, 793 F.3d at 835-36.
For the foregoing reasons, we conclude that SVFD‘s interest in preventing religious discrimination and a loyal employment relationship did not outweigh Sprague‘s
II. Collateral Estoppel
Having concluded that Sprague has met his initial burden to show that SVFD engaged in viewpoint discrimination, we turn to applicability of collateral estoppel to Sprague‘s case and conclude that collateral estoppel does not bar Sprague‘s lawsuit for three reasons.
Collateral estoppel, also known as issue preclusion, bars the relitigation of issues that were decided in a previous proceeding involving the same parties. Christensen, 152 Wn.2d at 306. The court considers four factors to determine whether collateral estoppel applies:
“(1) identical issues; (2) a final judgment on the merits; (3) the party against whom the plea is asserted must have been a party to or in privity with a party to the prior adjudication; and (4) application of the doctrine must not work an injustice on the party against whom the doctrine is to be applied.”
Shoemaker v. City of Bremerton, 109 Wn.2d 504, 507, 745 P.2d 858 (1987) (quoting Malland v. Dep‘t of Ret. Sys., 103 Wn.2d 484, 489, 694 P.2d 16 (1985)). In addition, the issues to be precluded must have been actually litigated and necessarily decided in the first proceeding. Id. at 508. The party against whom collateral estoppel is asserted must have had a full and fair opportunity to litigate the issues in the first proceeding. Christensen, 152 Wn.2d at 307.
In addition, when deciding whether to apply collateral estoppel to an administrative proceeding, the court examines three more factors:
“(1) whether the agency acting within its competence made a factual decision; (2) agency and court procedural differences; and (3) policy considerations.”
Shoemaker, 109 Wn.2d at 508 (quoting State v. Dupard, 93 Wn.2d 268, 275, 609 P.2d 961 (1980)).
The parties agree that the Commission‘s hearing resulted in a final judgment on the merits and that Sprague was a party in that hearing. They focus instead on whether the issues decided by the Commission are identical to the issues presented by Sprague in his lawsuit and whether the application of collateral estoppel would be unjust. The parties also dispute whether the Commission‘s hearing merits collateral estoppel under the
SVFD relies on Shoemaker, arguing that Sprague‘s case presents identical issues. In Shoemaker, we applied collateral estoppel to a civil service commission‘s hearing upholding a police officer‘s demotion after the officer testified concerning irregularities in the police department‘s performance evaluations. Id. at 505-06. He petitioned the City of Bremerton‘s Civil Service Commission to reverse the demotion. Id. at 506. At the commission‘s hearing, Shoemaker was represented by counsel who gave opening and closing statements, examined and cross-examined witnesses, examined documents, submitted a hearing memorandum, and made objections that the commissioners heard and decided. Id.
The Bremerton commission ruled that Shoemaker was not demoted in retaliation for his testimony. Id. at 507. Shoemaker failed to pursue an appeal of the Bremerton commission‘s decision. Id. He then filed a civil rights action in the federal district court under
Sprague‘s case differs from Shoemaker‘s case in three basic ways27 that we discuss below—most particularly, it differs because Sprague‘s underlying claim is a constitutional one for which we grant the Commission no deference. As a result, we decline to apply collateral estoppel to Sprague‘s case and instead address the constitutional issues that he presents.
First, the Shoemaker issues decided by the Bremerton commission are not identical to the issues presented in this case. See 109 Wn.2d at 511. The issue in this case is whether SVFD‘s policy violated the
The issue before the Spokane County Civil Service Commission was whether Sprague‘s employment was terminated in good faith “for cause” within the meaning of
Several factors weigh heavily against SVFD‘s argument that the issues in this case are the same as the issues before the Commission. First, the Commission is required by
To the extent that the Commission considered the constitutional questions of free speech at issue here, it did not make a final decision. Nor was the Commission authorized to decide any free speech issues according to the terms of its jurisdictional statute,
Second, because of the disparity of relief offered by the Commission compared to the relief offered by the court, it would be unjust to apply collateral estoppel to Sprague‘s claims. When the disparity between the reliefs available creates the risk that “litigants [may] forgo their administrative remedies for fear of preclusion in other, more substantial claims,” collateral estoppel is inappropriate. Shoemaker, 109 Wn.2d at 513. In the hearing before the Commission, Sprague sought reinstatement. In this lawsuit, Sprague seeks reinstatement, injunctive relief, a declaratory judgment invalidating SVFD‘s policy, special damages for lost wages and benefits, damages for emotional distress, and punitive damages for the violation of his civil rights. The Commission has authority to order reinstatement only; it cannot provide any of the other forms of relief that Sprague now seeks.
Finally, public policy considerations support Sprague‘s lawsuit moving forward. “[T]he relitigation of an important public question of law such as the validity of the . . . ordinance should not be foreclosed by collateral estoppel.” Kennedy v. City of Seattle, 94 Wn.2d 376, 379, 617 P.2d 713 (1980). Sprague‘s case presents important issues of state and federal law. The extent to which a public employer may restrict an employee‘s speech, especially when that speech is religious, is a complex issue affecting over 63,000 Washington state employees. See Office of Fin. Mgmt., Number of Employees and Headcount Trends (Sept. 3, 2017), https://ofm.wa.gov/state-human-resources/workforce-data-planning/workforce-data-trends/workforce-profile-overview/number-employees-and-headcount-trends [https://perma.cc/VU3Q-2NZ9]. We should not give preclusive effect to agency decisions when they are intertwined with such important constitutional questions. See Kennedy, 94 Wn.2d at 379 (holding that an appellate court is the most appropriate forum to decide matters of constitutionality).
Therefore, for the foregoing reasons, we decline to apply collateral estoppel to Sprague‘s case.
III. Issues on Remand
To prevail on a wrongful termination claim based on a violation of the
Since the speech at issue here was constitutionally protected and a “‘motivating factor‘” in SVFD‘s decision to terminate Sprague, we remand to the superior court.30 Id. On remand, the burden will shift to SVFD to show by a preponderance of the evidence that it would have terminated Sprague even in the absence of his protected conduct. Id. SVFD must additionally show that Sprague‘s termination was justified under
CONCLUSION
In sum, we reverse the superior court‘s grant of summary judgment to SVFD. While Policy 171 is reasonable, SVFD applied it to Sprague in a manner that was not viewpoint neutral. SVFD permitted some viewpoints, but prohibited Sprague‘s viewpoint. Here, SVFD‘s interest in avoiding an establishment clause violation does not outweigh Sprague‘s interests under the
Wiggins, J.
WE CONCUR.
Stephens, J.
Madsen, J.
Fairhurst, C.J.
Owens, J.
YU, J. (concurring in part and dissenting in part) — The majority resolves petitioner Jonathan Sprague‘s
A government employer may regulate its employees’ political or religious speech at work by implementing policies or practices that restrict a public employee‘s use of work e-mail and government resources. Enforcing such policies does not automatically constitute viewpoint discrimination that offends the
Nevertheless, Sprague argues that SVFD‘s restrictions on his use of SVFD‘s e-mail and electronic bulletin board violated the
I would remand for further fact-finding on whether SVFD had an unwritten policy or practice that was specifically hostile to religious viewpoints. I therefore respectfully dissent from the majority‘s conclusion that the record establishes that SVFD violated Sprague‘s
Yu, J.
Fairhurst, C.J.
Johnson, J.
Gonzalez, J.